One night changes lives, puts colleges on the spot

Universities are being scrutinized from both sides for their handling of sexual assault allegations. Students are realizing their rights, finding their voices and fighting for justice through lawsuits.
Kate Murphy/The Enquirer

Buy Photo

Saturday, August 19, 2017: Hundreds of universities, including UC, Miami University and Ohio State University, are under investigation by the Department of Education for how they handle reports of sexual assault.(Photo: The Enquirer/Meg Vogel)Buy Photo

The University of Cincinnati is being sued by two students for how it handled a sexual assault investigation. One student is the accuser. The other is the accused.

The night of Aug. 22, 2015, was the beginning of a legal battle neither student probably ever expected.

It ignited a federal investigation into UC.

It started a nightmare that would consume at least the next two years of their lives.

It was the night two college students’ lives changed forever.

The case demonstrates the lose-lose situation for all sides – the students involved and the university – when there's a dispute over whether sexual contact between students was consensual or not.

"The system is not designed to achieve justice for either party," said Eric Rosenberg, an attorney who has represented accused students in about 20 lawsuits across the country. "It’s no wonder people are angry."

It's a nationwide problem that flared up after 2011 with a letter issued by the Obama administration's Department of Education. It ordered colleges and universities “to take immediate and effective steps to end sexual harassment and sexual violence” on their campuses.

The letter, which came to be known as the "Dear Colleague" letter because of its innocuous opening, tells schools to use “fair and impartial procedures” when evaluating reports of sexual misconduct and conducting disciplinary proceedings. However, the department gave little guidance beyond instructing them to use the standard of proof known as a "preponderance of evidence."

So colleges each created their own procedures – a patchwork of attempted justice that has made no one happy. Instead, it has led to more than 350 complaints with the Department of Education and numerous federal lawsuits across the country.

Advocates for the accused say schools are rushing to judgment against men. Women's activists point to the small percentage of complaints that result in discipline to show schools aren't supporting survivors.

Saturday, August 19, 2017: Sexual assault cases force universities into legal battles that make headlines and can cost them hundreds of thousands of dollars. However, as a public educational institution that receives federal funding it is the universities responsibility to handle them.(Photo: The Enquirer/Meg Vogel)

Different stories about same night

The two former UC students have similar stories about what happened that night during Welcome Weekend 2015, up until about 11 p.m.

They were drinking "jungle juice" – a liquor concoction – and beer at a party off campus with friends, then made their way to the main strip of bars and late-night pizza spots. They hadn’t met before that night.

Jennifer Schoewe, then a 20-year-old junior, said she left the party intending to walk home, but Tyler Gischel ended up walking her back to his place instead. He was 19 and a sophomore on the hockey team.

The lawsuit claims UC violated the federal gender-equity law known as Title IX by creating a “hostile environment” in failing to get Schoewe's alleged attacker off campus in a timely manner after she reported she was sexually assaulted.

Schoewe lawsuit(Photo: Provided)

That lawsuit came less than two weeks after Gischel filed a lawsuit of his own against UC. It claims the school ignored evidence of Gischel's innocence and unlawfully disciplined him for an encounter he said was consensual.

Gischel's 69-page lawsuit, filed July 13 in U.S. District Court in Cincinnati, also accuses the university of anti-male bias in its handling of the case, which led to his expulsion.

The criminal case against Gischel was dismissed in November 2016 after Schoewe refused to comply with a judge's order to give his attorney access to her cell phone. Schoewe and the UC police detective who investigated the incident, Bill Richey, were suspected of being romantically involved. Two investigations found no evidence of romantic relationships or sexual harassment between Richey and victims in his cases.

That's part of why Gischel is suing UC. He says UC didn't address any questions related to the alleged relationship in the administrative hearing, which would have shown "defects" in Schoewe's allegations.

Schoewe has denied any inappropriate relationship and said it has nothing to do with what happened on that night in August.

Gischel lawsuit(Photo: Provided)

When Gischel filed his lawsuit, Schoewe told The Enquirer that she doesn’t want UC punished and the young man rewarded for the one thing the school did right: expel him.

“It’s not fair to them. It’s not fair to me. And it’s not fair to the students attending UC,” she said. “Not only is it disgusting that he could get paid for [what he did to me], but it’s disgusting that he could be back on a campus after this.”

Cases put universities in difficult positions

The problem is that universities are ill-equipped to handle sexual assault accusations, said Josh Engel, a defense attorney who represents accused students suing UC, Miami and other universities. He's also a former prosecutor who has handled dozens of Title IX cases and put sex offenders in jail.

“Schools are being asked to act as police and prosecutors and judges and juries in what are the most complicated cases for the legal system to deal with,” Engel said. "You’re inevitably going to get mistakes."

Campus sexual assault is an issue so sensitive that neither UC administrators nor the Association of University Title IX Administrators would speak on the record about the challenges they're facing in handling these cases. But the head of Ohio's public university group said getting it right with limited resources and expertise is a tough task.

“The natural instinct is to come to the aid and defense of the victim, while at the same time always protecting the rights of the accused,” said Bruce Johnson, president and CEO of the Inter-University Council of Ohio, which represents the state's 14 public institutions. “That’s the continuing challenge.”

Johnson said dealing with sexual assault allegations is expensive and traumatic, but ignoring the issue is not an option.

Will they always be successful? No, not in every case, he said.

“But they are committed to the process,” Johnson said. “They don’t want to just leave it up to the local judges and police department.”

Buy Photo

Saturday, August 19, 2017: In 2011, the federal government put pressure on universities to act on sexual assault accusations and offered some guidelines. However, it left details of most policies, procedures and definitions in the hands of the schoolÕs Title IX offices.(Photo: The Enquirer/Meg Vogel)

Risa Lieberwitz, general counsel for the American Association of University Professors, said universities weren’t as active in handling Title IX issues as they should’ve been in 2011. They didn’t have clear policies about Title IX, weren’t responding promptly enough to complaints and had students who didn’t understand the process, she said.

That put universities in a tough position to suddenly deal with such issues when they were pressured to do so.

Cynthia Garrett, a defense attorney and co-president of Families Advocating for Campus Equality, said lawsuits like these show that “no one is happy” with the approach schools have taken.

Suing, Garrett said, is how systems become more effective. It’s also the only option for accused students to get their lives and reputations back.

“There are moving targets of a definition [of sexual assault and consent] and no evidence other than parties’ testimony,” Garrett said. Students "get caught under a freight train and they don’t have any control over the process.”

How UC handles sexual assault accusations

Here's how it works right now at UC:The Title IX Office – and sometimes UC police – will investigate a report. Then the case will then go through a procedural review.

At the core of these cases is consent, which UC defines as informed, freely given, mutual, and able to be withdrawn at any time. The definition is different at every school, but UC maintains that a person cannot give consent if he or she is so impaired that the person doesn't understand the sexual situation. That includes circumstances around the alleged victim's age, alcohol or drug consumption and consciousness.

That review is not a court of law, so it's not a space where the accused is "innocent until proven guilty." The Dear Colleague letter instead calls for a preponderance of evidence as the standard of proof, which means the accuser provided more convincing evidence than the accused student.

The accused is also not allowed to have legal representation speak for them. However, a UC staff member will give the accused student an opportunity to tell his or her side of the story and present evidence, according to UC's website.

The hearing officer will assess the case and determine whether it is "more likely than not" that the accused is responsible for violating the Code of Conduct.

The case will then go to an Administrative Review Committee if the accused student disputes responsibility and/or the sanctions. That committee is made up of a hearing administrator (who votes in a tie) and two faculty or staff members trained to hear Title IX cases. Those faculty and staff members could come from UC's College of Arts and Sciences, research office, financial aid or other parts of the university.

Those individuals ultimately determine the fate of the involved students.

Buy Photo

Students fill Main Street between classes at the University of Cincinnati main campus in the University Heights neighborhood of Cincinnati on Tuesday, Aug. 23, 2016.(Photo: The Enquirer/Sam Greene)

Richard Goldberg, Gischel's lawyer in the criminal case, told The Enquirer in January that UC's disciplinary procedure wasn't a proper hearing.

"I call it a kangaroo process,” Goldberg said. “I’m not allowed to participate as his lawyer, he’s not allowed to ask all the questions he wants to. She says he did it and that was the end of it.”